Judicial review and the basic architecture of federalism

Federalism can be characterized as a mode of governance in which final decision-making powers are ‘divided’ across different levels (e.g., federal, provincial, and municipal). The relationship between federalism, so-defined, and judicial review is philosophically and practically important. It is also, with some notable exceptions, surprisingly under-theorized. Many federalism scholars assume that federalism requires judicial review without exploring how other mechanisms could play courts’ intended roles. Many judicial review scholars assume that the justification for judicial review depends (at least primarily) on rights-based considerations. This work takes a different tack, offering positive reasons for judicial review in federal ‘division of powers’ cases largely independent of rights review. It argues that the basic commitments of and the incentive structure inherent in federal governance require a third party to play conflict resolution and border policing roles. It further argues that proposed non-judicial mechanisms are unlikely to fill those necessary roles. Well-designed, independent courts can do so, creating a strong defeasible case for judicial review in federal countries that is presently undefeated. This best case for judicial review’s fundamental concern with maintaining a division of powers should, however, lead courts in multiple paradigmatically federal countries to take different approaches to interpretation.